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ELCDismissedELC Mombasa (record of appeal - stay application in appeal against taxing master's ruling of 20th September 2023)· [2024] KEELC 6887 (KLR)

Mwasi & others v Mbaruk (Environment and Land Appeal 30 of 2018) [2024] KEELC 6887 (KLR)

Environment and Land Court
23 October 2024
SKS. M. Kibunja
841 words in judgment
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The bottom line

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Kenya's Environment and Land Court dismissed a stay application because the pending appeal did not relate to the decision the applicant wanted stayed.

What this practically means

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Executive summary

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The respondent, Mbaruk Ayub Ali Mbaruk, moved the Environment and Land Court at Mombasa by notice of motion dated 24th April 2024 under sections 1A, 1B and 3A of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules, seeking stay of execution of a taxing master's ruling of 20th September 2023, delivered by Hon. J. Nyariki, which taxed the appellants' bill of costs at Kshs.326,992.40. He deponed that he had been served with a notice of proclamation to auction his properties for Kshs.378,432, that the appellants were men of straw, and that execution would render his pending appeal, Mombasa CACA No. E006 of 2020, nugatory; he relied on a Court of Appeal order of 6th May 2022 directing the parties to maintain status quo. The appellants opposed through grounds of opposition dated 13th May 2024, contending the court was functus officio as the Court of Appeal was seized of the matter and that the application did not properly challenge the taxing decision. The court, S. M. Kibunja J, framed two issues: whether the threshold for stay was met, and costs. It held that the pending appeal and the status quo order related to the suit property, not the taxation ruling, and that no appeal or reference had been filed against the taxing master's ruling; the application was therefore a non-starter. The notice of motion was dismissed with costs to the appellants.

Key legal issues

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01

Whether the threshold for stay of execution under Order 42 Rule 6 was met

Holding

The application failed because the appeal relied upon (Mombasa CACA No. E006 of 2020) does not concern the taxing master's ruling of 20th September 2023, and no appeal or reference was filed against that ruling.

Reasoning

The court noted the application was prompted by execution after the 20th September 2023 taxation ruling. The pending Court of Appeal appeal concerned the suit property and a status quo order of 6th May 2022, unrelated to costs. The application sought stay of a ruling against which no appeal or reference existed, so it was improperly grounded and a non-starter.

p. 2
02

Costs of the application

Holding

The respondent, having failed, was ordered to pay the appellants' costs under section 27 of the Civil Procedure Rules.

Reasoning

Under section 27 of the Civil Procedure Act costs follow the event. Since the respondent's application was dismissed, he was to bear the appellants' costs of the application.

p. 2

Legal principles established

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  • A stay of execution under Order 42 Rule 6 can only pending an appeal against the decision sought to be stayed; a stay cannot be anchored on an unrelated pending appeal.

Court orders

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  1. 1.The respondent's notice of motion dated the 24th April 2024 is without merit and is dismissed.
  2. 2.The respondent to pay the appellants' costs.

Authorities

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Legislation

  • Civil Procedure Actsections 1A, 1B, 3A
  • Civil Procedure Actsection 27
  • Civil Procedure RulesOrder 42 Rule 6
On appeal from
null
null
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mwasi & others v Mbaruk (Environment and Land Appeal 30 of 2018) [2024] KEELC 6887 (KLR)", Case Analysis (2024). ELC Mombasa (record of appeal - stay application in appeal against taxing master's ruling of 20th September 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6887/eng@2024-10-23

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.